Smith v. Jenkens
Filing
41
ORDER; FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 12/7/15 ORDERING that Defendants' request for judicial notice (Doc. No. 25 ) is GRANTED; Defendants motion for an extension of time to oppose plaintiffs motions for summary judgment (Doc. No. 39 ) is DENIED as unnecessary; and the Clerk of the Court is directed to randomly assign a United States District Judge to this action. It is RECOMMENDED that Defendants motion to revoke plaintiffs IFP status (Doc. No. 25 ) be denied; and Plaintiffs motions for summary judgment (Doc. Nos. 23 & 37 ) be denied without prejudice. Randomly assigned and referred to Judge William B. Shubb; Objections to F&R due within 14 days.(Dillon, M)
1
2
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
FOR THE EASTERN DISTRICT OF CALIFORNIA
10
11
DESHONE SMITH,
12
Plaintiff,
13
14
No. 2:15-cv-0344 KJN P (TEMP)
v.
ORDER AND
OFFICER JENKENS et al.,
15
FINDINGS AND RECOMMENDATIONS
Defendants.
16
Plaintiff is a state prisoner, proceeding pro se and in forma pauperis (“IFP”) with this civil
17
18
rights action filed pursuant to 42 U.S.C. § 1983. Pending before the court is defendants’ motion
19
to revoke plaintiff’s IFP status pursuant to 28 U.S.C. § 1915(g). Also pending before the court
20
are plaintiff’s motions for summary judgment. The court addresses each of these motions in turn.
21
BACKGROUND
Plaintiff is proceeding on a second amended complaint against defendants Jenkens and
22
23
Pogue. At screening, then-Magistrate Judge Dale A. Drozd found that plaintiff’s complaint
24
appeared to state a cognizable claim for retaliation under the First Amendment against defendant
25
Jenkens. Judge Drozd also found that plaintiff’s complaint appeared to state a cognizable claim
26
for excessive use of force under the Eighth Amendment against defendants Jenkens and Pogue.
27
(Doc. Nos. 16 & 17.)
28
////
1
DEFENDANTS’ MOTION TO REVOKE PLAINTIFF’S IFP STATUS
1
2
In defendants’ motion to revoke plaintiff’s IFP status, defense counsel argues that plaintiff
3
has accrued at least three strikes for purposes of 28 U.S.C. § 1915(g). (Defs.’ Mem. of P. & A. at
4
3-8.) Specifically, defense counsel characterizes the following causes of action as “strikes”:1
5
Strike 1: Smith v. Dickson, No. 2:14-cv-3002 CKD (E.D. Cal.)
6
Plaintiff commenced this action under 42 U.S.C. § 1983 on December 30, 2014. The
7
court twice dismissed plaintiff’s complaint for failure to state a claim, and on June 5,
8
2015, the court dismissed this action without prejudice because plaintiff had failed to cure
9
the defects of his prior complaints. (Defs.’ Req. for Judicial Notice Ex. 1.)
10
Strike 2: Smith v. Cser, No. 2:07-cv-1330 LKK CMK (E.D. Cal.)
11
Plaintiff commenced this action under 42 U.S.C. § 1983 on July 6, 2007. The assigned
12
Magistrate Judge issued findings and recommendations, recommending dismissal of
13
plaintiff’s complaint for failure to state a claim, and on April 15, 2008, the assigned
14
District Judge adopted the findings and recommendations in full and dismissed this action
15
for failure to state a claim. (Defs.’ Req. for Judicial Notice Ex. 2.)
16
Strike 3: Smith v. Becerra, No. 1:08-cv-1601 (E.D. Cal.)
17
Plaintiff commenced this action under 42 U.S.C. § 1983 on October 23, 2008. On July
18
30, 2009, the court dismissed this action without prejudice for failure to exhaust
19
administrative remedies prior to filing suit. (Defs.’ Req. for Judicial Notice Ex. 3.)
20
“The burden of establishing that three strikes have accrued is on the party challenging the
21
prisoner’s right to proceed in forma pauperis.” Knapp v. Hogan, 738 F.3d 1106, 1110 (9th Cir.
22
2013). See also Silva v. Vittorio, 658 F.3d 1090, 1097, n. 3 (9th Cir. 2010); O’Neal v. Price, 531
23
F.3d 1146, 1151 (9th Cir. 2008); Andrews v. King, 398 F.3d 1113, 1116 (9th Cir. 2005). In this
24
case, defendants have failed to carry their burden. Specifically, defense counsel has identified
25
Smith v. Dickson, No. 2:14-cv-3002 CKD (E.D. Cal.) as a strike. However, the court dismissed
26
27
28
1
Defendants have filed a request for judicial notice of their exhibits, which consist of copies of
docket sheets and court orders from plaintiff’s previously-filed cases. Pursuant to Federal Rule of
Evidence 201, the court will grant defendants’ request.
2
1
that case on June 5, 2015, well after plaintiff commenced this action on February 10, 2015. The
2
Ninth Circuit Court of Appeals has made clear that § 1915(g) applies “to claims dismissed prior
3
to the current proceedings.” Tierney v. Kupers, 128 F.3d 1310,1311 (9th Cir. 1997).
4
Accordingly, because defendants have failed to meet their burden of establishing that this prior
5
action qualifies as a strike, the court cannot count it as such.
Defendants have identified two of plaintiff’s other prior civil actions as strikes. However,
6
7
the court need not decide whether these actions constitute strikes because even assuming
8
arguendo that they do, at most, defendants will have identified only two of plaintiff’s prior civil
9
actions that qualify as strikes. Accordingly, the court recommends that defendants’ motion to
10
revoke plaintiff’s IFP status be denied.
PLAINTIFF’S MOTIONS FOR SUMMARY JUDGMENT
11
12
Plaintiff has filed two virtually identical motions for summary judgment. Under Federal
13
Rule of Civil Procedure 56(a), a court must “grant summary judgment if the movant shows there
14
is no genuine dispute as to any material fact and that movant is entitled to judgment as a matter of
15
law.” Fed. R. Civ. P. 56(a). A party asserting that a fact is not “genuinely disputed” must support
16
that assertion by
17
citing to particular parts of materials in the record, including
depositions, documents, electronically stored information, affidavits
or declarations, stipulations (including those made for purposes of
the motion only), admissions, interrogatory answers, or other
materials.
18
19
20
Fed. R. Civ. P. 56(c)(1). See also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (“Under
21
summary judgment practice, the moving party always bears the initial responsibility of informing
22
the district court of the basis for its motion, and identifying those portions of the pleadings,
23
depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,
24
which it believes demonstrate the absence of a genuine issue of material fact.”) (citation and
25
internal quotation marks omitted).
26
////
27
////
28
////
3
1
2
3
4
5
In addition, Local Rule 260(a) requires that a motion for summary judgment
be accompanied by a “Statement of Undisputed Facts” that shall
enumerate discretely each of the specific material facts relied upon
in support of the motion and cite the particular portions of any
pleading, affidavit, deposition, interrogatory answer, admission, or
other document relied upon to establish that fact.
E.D. Cal. L.R. 260(a).
6
In this case, plaintiff’s motions for summary judgment are disorganized, difficult to
7
decipher, and defective in that they do not comply with the Federal Rule of Civil Procedure 56 or
8
Local Rule 260. Although the Ninth Circuit has “held consistently that courts should construe
9
liberally motion papers and pleadings filed by pro se inmates and should avoid applying summary
10
judgment rules strictly,” Thomas v. Ponder, 611 F.3d 1144, 1150 (9th Cir. 2010), the Ninth
11
Circuit has also made clear that a pro se litigant must “abide by the rules of the court in which he
12
litigates.” Bias v. Moynihan, 508 F.3d 1212, 1223 (9th Cir. 2007) (quotation omitted). Plaintiff
13
has failed to “identify[] each claim or defense – or the part of each claim or defense – on which
14
summary judgment is sought.” See Fed. R. Civ. P. 56(a). Plaintiff’s motions are also completely
15
devoid of citation(s) to legal authority or to his attached exhibits. As a result, this court cannot
16
reasonably expect defendants to respond plaintiff’s argument in its current form let alone make a
17
finding that plaintiff has affirmatively demonstrated with his motions that no reasonable trier of
18
fact could find other than for him. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984
19
(9th Cir. 2007). Given the early stage of these proceedings, the court recommends that plaintiff's
20
motions for summary judgment be denied without prejudice. If plaintiff chooses to move for
21
summary judgment at a later date, the court cautions him that his motion must conform to the
22
requirements of Federal Rule of Civil Procedure 56 and Local Rule 260.
23
Finally, defendants filed a motion for an extension of time to oppose plaintiff’s motions
24
for summary judgment until after the court has disposed of defendants’ motion to revoke
25
plaintiff’s IFP status. In light of the discussion herein, the court relieves defendants of having to
26
file any opposition to plaintiff’s motions for summary judgment and denies defendants’ motion
27
for an extension of time as unnecessary.
28
4
1
2
OTHER MATTERS
Plaintiff has filed an inordinate number of documents styled “Notice” in which he appears
3
to complain about various conditions of his confinement unrelated to his claims against the
4
defendants in this action. It is not clear why plaintiff has filed these notices or what relief
5
plaintiff seeks from the court. However, if plaintiff experiences problems at his institution of
6
incarceration, he should pursue an inmate appeal regarding his complaints. See Cal. Code Regs.
7
tit. 15, § 3084.1(a) (prisoners may appeal “any policy, decision, action, condition, or omission by
8
the department or its staff that the inmate or parolee can demonstrate as having a material adverse
9
effect upon his or her health, safety, or welfare.”).
10
Plaintiff is cautioned that improper and superfluous filings impede the progress of a case,
11
so the court may impose restrictions on plaintiff’s filings if he does not exercise appropriate
12
restraint in the future. See De Long v. Jennessey, 912 F.2d 1144, 1147 (9th Cir. 1990) (“There is
13
strong precedent establishing the inherent power of federal courts to regulate the activities of
14
abusive litigants by imposing carefully tailored restrictions under the appropriate circumstances.”)
15
(quoting Tripati v. Beaman, 878 F.2d 351, 352 (10th Cir. 1989)). As noted above, although
16
plaintiff is proceeding pro se, he is required to comply with the Federal Rules of Civil Procedure
17
and the Local Rules of Court. Plaintiff’s failure to obey court orders and the local and federal
18
rules and meet his responsibilities in prosecuting this action may justify dismissal, including
19
dismissal with prejudice. See Ferdik v. Bonzelet, 963 F.2d 1258, 1262-63 (9th Cir. 1992).
20
CONCLUSION
21
In accordance with the above, IT IS HEREBY ORDERED that:
22
1. Defendants’ request for judicial notice (Doc. No. 25) is granted;
23
2. Defendants’ motion for an extension of time to oppose plaintiff’s motions for summary
24
25
26
judgment (Doc. No. 39) is denied as unnecessary; and
3. The Clerk of the Court is directed to randomly assign a United States District Judge to
this action.
27
IT IS HEREBY RECOMMENDED that:
28
1. Defendants’ motion to revoke plaintiff’s IFP status (Doc. No. 25) be denied; and
5
1
2
2. Plaintiff’s motions for summary judgment (Doc. Nos. 23 & 37) be denied without
prejudice.
3
These findings and recommendations are submitted to the United States District Judge
4
assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days
5
after being served with these findings and recommendations, any party may file written
6
objections with the court and serve a copy on all parties. Such a document should be captioned
7
“Objections to Magistrate Judge’s Findings and Recommendations.” Any response to the
8
objections shall be filed and served within fourteen days after service of the objections. The
9
parties are advised that failure to file objections within the specified time may waive the right to
10
appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
11
Dated: December 7, 2015
12
13
14
smit0344.57ifp
15
16
17
18
19
20
21
22
23
24
25
26
27
28
6
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?